TIMMENDEQUAS v. BROWN

The opinion of the court was delivered by: WILLIAM BASSLER, District Judge

OPINION

Plaintiffs brought this suit under 42 U.S.C. § 1983 in the
Federal District Court of New Jersey as a class action on behalf
of all similarly situated prisoners facing involuntary civil
commitment pursuant to the New Jersey Sexually Violent Predator Act, N.J.S.A. § 30:4-27.24 et seq. Plaintiffs allege in Count
Three and Count Four of their Third Amended Complaint that their
rights to due process of law under the Fourteenth Amendment were
violated because they were denied notice and an opportunity to be
heard during the screening and referral process for involuntary
civil commitment.

Defendants are individuals, state agencies, and private
entities involved in the involuntary civil commitment process.
The Defendants now move to dismiss Counts Three and Four for
failure to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6).

The Court has jurisdiction over this matter pursuant to
28 U.S.C. § 1331 and 1343. Venue is proper pursuant to
28 U.S.C. § 1391.

For the reasons set forth below, the Defendants' motion to
dismiss is GRANTED.

I. Background

A. Procedural Background

Plaintiffs Paul Timmendequas, William Whelan, Mickey Vanderpool
and Gary Sigman filed suit on behalf of all similarly situated
individuals. The named Plaintiffs represent a class of current
and former New Jersey prisoners (collectively referred to as
"Plaintiffs") who were convicted of sexual offenses and subject
to the screening and referral process for involuntary civil commitment under the New Jersey Sexually Violent Predator
Act (the "Act"), and were at one time or are currently confined
to the Adult Diagnostic and Treatment Center ("ADTC").
(Plaintiffs' Brief In Opposition To State Defendants' Motion To
Dismiss (hereinafter "Plaintiffs' Brief") at 6.)

Defendants are Devon Brown, Commissioner of the New Jersey
Department of Corrections ("DOC"), Richard Cevasco, Director of
Psychological Services for the DOC, Thomas Farrell, DOC Medical
Services, Grace Rogers, Administrator of the ADTC, and Peter
Harvey, Attorney General of New Jersey (collectively referred to
as the "Defendants").*fn1*fn2

Plaintiffs allege in Counts Three and Four of their Third
Amended Complaint that Defendants violated their rights under the
Fourteenth Amendment pursuant to 42 U.S.C. § 1983 with regard to
their civil commitment under the Act.*fn3 Plaintiffs seek
equitable relief in the form of a Temporary Restraining Order as
well as Preliminary and Permanent Injunctions against the Defendants to
prevent them from carrying out the screening and referral process
mandated by the Act. Defendants now move to dismiss Counts Three
and Four pursuant to Fed.R.Civ.P. 12(b)(6). The issue before
the Court, therefore, is not whether the entire involuntary civil
commitment process under the Act provides adequate process but
rather whether procedural protections are required at the
referral stage.

B. The Process For Involuntary Civil Commitment Under The New
Jersey Sexually Violent Predator Act

The New Jersey Sexually Violent Predator Act, N.J.S.A.
30:4-27.24 et seq., provides for the involuntary civil commitment
of an individual deemed to be a sexually violent predator
("SVP"). In passing the Act, the New Jersey Legislature made
specific findings regarding SVPs. N.J.S.A. 30:4-27.25. The
Legislature noted that certain individuals who commit sex
offenses suffer from mental abnormalities which make them likely
to engage in repeat acts of predatory sexual violence if not
treated. Ibid. The Legislature deemed it necessary to modify
the previous civil commitment framework and additionally separate
involuntarily committed SVPs from other persons who have been
civilly committed. Ibid. The Act defines a SVP as:

. . . a person who has been convicted, adjudicated
delinquent or found not guilty by reason of insanity
for commission of a sexually violent offense, or has
been charged with a sexually violent offense but found to be
incompetent to stand trial, and suffers from mental
abnormality or personality disorder that makes the
person likely to engage in acts of sexual violence if
not confined in a secure facility for control, care
and treatment. N.J.S.A. 30:4-27.26(b).

When it appears that a person may meet the criteria of a SVP,
the "agency with jurisdiction" is mandated to provide notice to
the Attorney General ninety days, or as soon as practicable,
prior to the anticipated release of a person who has been
convicted of a sexually violent offense. N.J.S.A.
30:42-7.27(a)(1). The "agency with jurisdiction" means the agency
which releases a person who is serving a sentence or term of
confinement. N.J.S.A. 30:4-27.26. The term includes the New
Jersey Department of Corrections. Ibid.

Both parties have made reference to a committee within the New
Jersey Department of Corrections that makes the initial
evaluation of an inmate for referral to the Attorney General.
(See Plaintiffs' Third Amended Complaint 25 (hereinafter
"Complaint"); Defendant's Motion To Dismiss Counts Three and Four
(hereinafter "Defendant's Brief") at 10; 09-15-05 Transcript of
Oral Argument at 9, ¶ 11-12 (hereinafter "Transcript").) The
parties have identified this committee as the "Institutional
Release Committee", the "Inmate Release Committee", and the
"IRC". Id. Neither party, however, cites any legislative
mandate within the Act, or elsewhere, describing the makeup or functional responsibility of this committee.*fn4

If the Attorney General determines that public safety warrants
the involuntary civil commitment of a SVP, the Attorney General
may initiate a court proceeding by presenting to a judge for
immediate review the certification of two doctors, one of whom
must be a psychiatrist, who have examined the person no more than
three days before the petition for commitment. N.J.S.A.
30:4-27.28; 30:4-27.26 (emphasis added); see also In the
Matter of the Commitments of M.G. and D.C., 331 N.J.Super. 365,
373 (2000). Upon receipt of these documents, the court must
determine whether there is probable cause to believe that the
person is a sexually violent predator. N.J.S.A. 30:4-27.28(f).
If the court so finds, it will issue an order setting a date for
a final hearing and authorizing temporary commitment to a secure
facility designated for the custody, care and treatment of SVPs
pending the final hearing. N.J.S.A. 30:4-27.28(f). The final
hearing must be conducted within twenty days of the temporary
commitment. N.J.S.A. 30:4-27.29(a). At least ten days prior to
the final hearing, the SVP and their counsel are to be provided
with copies of the clinical certificates and supporting
documents, the temporary court order and a statement of the SVP's rights at the court hearing. N.J.S.A. 30:4-27.30(a). The Act
mandates that the SVP shall in no event be released from
confinement prior to the final hearing. N.J.S.A. 30:4-27.28(f).

At the final hearing, the court must find by clear and
convincing evidence that the SVP is in need of continued
involuntary commitment to issue an order authorizing the
involuntary commitment of that person. N.J.S.A. 30:4-27.32(a).
A person subject to involuntary commitment is to be provided
counsel at the hearing and is not to be permitted to appear at
the hearing without counsel. N.J.S.A. 30:4-27.29(c). A
psychiatrist on the SVP's treatment team who has conducted a
personal examination of the person within five days of the
hearing, shall testify at the hearing to the clinical basis for
the need for involuntary commitment as a sexually violent
predator. N.J.S.A. 30:4-27.30(b). Other members of the SVP's
treatment team and other witnesses with relevant information,
offered by the SVP or the Attorney General, are also permitted to
testify at the final hearing. Ibid. At the final hearing, a
person subject to involuntary commitment as a SVP has the
following rights:

a. The right to be represented by counsel or, if
indigent, by appointed counsel;

b. The right to be present at the court hearing
unless the court determines that because of the
person's conduct at the court hearing the proceeding
cannot reasonably continue while the person is
present; c. The right to present evidence;

d. The right to cross-examine witnesses; and

e. The right to a hearing in camera. N.J.S.A.
30:4-27.31.

Those persons committed under the Act receive annual review
hearings. N.J.S.A. 30:4-27.35. A SVP may be released from
involuntary civil commitment upon recommendation of the
Department of Human Services or petition for discharge by the
SVP. N.J.S.A. 30:4-27.36.

II. Discussion

A. Standard for Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) allows a party to move
for dismissal based upon the pleader's "failure to state a claim
upon which relief can be granted." Since the long-established
federal policy of civil litigation is to decide cases on the
proofs, district courts generally disfavor Rule 12(b)(6) motions.
Melo-Sonics Corp. v. Cropp, 342 F.2d 856 (3d Cir. 1965); Panek
v. Boqucz, 718 F. Supp. 1228, 1229 (D.N.J. 1989).

In considering a Rule 12(b)(6) motion, a court is required to
accept all well-pleaded allegations in the complaint as true and
draw all reasonable inferences in favor of the non-moving party.
In re Rockefeller Center Prop., Inc. Sec. Litig., 311 F.3d 198,
215 (3d Cir. 2002) (internal citations omitted). The inquiry is
not whether a plaintiff will ultimately prevail in a trial on the
merits, but whether the claimant is entitled to offer evidence to
support their claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Dismissal under Rule 12(b)(6) is not
appropriate unless it appears beyond doubt that plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); In
re Rockefeller Center Prop., Inc. Sec. Litig.,
311 F.3d at 215-16 (3d Cir. 2002) (internal citations omitted). "But a court
need not credit a complaint's `bald allegations' or `legal
conclusions' when dismissing a motion to dismiss." Morse v.
Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)
(noting Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996), for
affirming dismissal of a § 1983 action).

B. Standard For A Cause Of Action Under § 1983

A plaintiff may have a cause of action under 42 U.S.C. § 1983
for certain violations of his constitutional rights. Section 1983
provides in relevant part:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory . . . subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . .

When analyzing a claim for relief under § 1983 for deprivation
of procedural due process rights, plaintiffs must allege that (1)
the individual interest of which they claim they were deprived is encompassed within the Fourteenth Amendment's
protection of "life, liberty, or property," and (2) the
procedures available to them did not provide due process of law.
Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). "The
constitutional violation actionable under § 1983 is not complete
when the deprivation occurs; it is not complete unless and until
the State fails to provide due process. Therefore, to determine
whether a constitutional violation has occurred, it is necessary
to ask what process the State provided, and whether it was
constitutionally adequate. This inquiry would examine the
procedural safeguards built into the statutory or administrative
procedure of effecting the deprivation, and any remedies for
erroneous deprivations provided by statute or tort law."
Zinermon v. Burch, 494 U.S. 113, 126 (1990).

The Court finds that Plaintiffs have sufficiently alleged their
liberty interest is encompassed within the Fourteenth Amendment
because the focus of their assertions is centered on the process
for the involuntary civil commitment to which they were subject.
The question now becomes whether the Plaintiffs have adduced a
set of facts in support of their averments that the process
available to them failed to provide the protections required
under the Due Process Clause. The Court finds they have not.

B. Procedural Protections

It is well-established that due process is a flexible standard
and "not a technical conception with a fixed content unrelated to
time, place and circumstances." Mathews v. Eldridge,
424 U.S. 319, 334 (1976) (internal citations omitted); see also Gilbert
v. Homar, 520 U.S. 924, 930 (1997); Reynolds v. Wagner,
128 F.3d 166, 179 (3d Cir. 1997); Tillman v. Lebanon County
Correctional Facility, 221 F.3d 410, 421 (3d Cir. 2000). The
fundamental requirement of due process is the opportunity to be
heard at a meaningful time and in a meaningful manner. Mathews, 424 U.S. at 333 citing Armstrong v. Manzo,
380 U.S. 545, 552 (1962). The rub here, of course, is determining
when and what is meaningful in the process of involuntary civil
commitment.

To determine what process is constitutionally due in a
particular case, the Supreme Court has looked to the three-factor
analysis enunciated in Mathews v. Eldridge. Zinermon,
494 U.S. at 127; Gilbert. v. Homar, 520 U.S. 924, 931-32 (1997);
see also Alvin, 227 F.3d at 120-21; Graham v. City of
Philadelphia, 402 F.3d 139, 145-46 (3d Cir. 2005); Hunter v.
Supreme Court of New Jersey, 951 F.Supp. 1161, 1180 (1996).

First, the private interest that will be affected by
the official action; second, the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional
or substitute procedural safeguards; and finally, the
Government's interest, including the function
involved and the fiscal and administrative burdens
that the additional or substitute procedural
requirement would entail. Mathews, 424 U.S. at 335.

In analyzing the Mathews factors, the Court is convinced that
the Plaintiffs can prove no set of facts that would support their
claim that due process protections are required at the referral
stage of the involuntary commitment process under the Act.

1. Plaintiffs' Interests

The Mathews analysis begins with consideration of the Plaintiffs' interest. The Plaintiffs' central argument is that
the determination to refer a person is "effectively dispositive
of [whether that person] will ultimately be committed
involuntarily under [the Act]." (Plaintiffs' Brief at 11.)
Plaintiffs have an interest in receiving a fair and balanced
hearing prior to being committed involuntarily. They have a right
to be free from undeserving restraint and an important interest
in gaining and maintaining their liberty. The Court, however,
concludes that none of these interests are at stake or affected
at the preliminary stage of the commitment process.

The Court finds no source even remotely suggesting the Attorney
General is beholden to the Department of Correction's referral to
seek civil commitment. Plaintiffs argue the mere referral
"condemns an inmate to suffer grievous loss . . . depriv[ation]
of their liberty . . . [and] immediate and irreparable
harm. . . ." (Plaintiffs' Brief at 12.) Plaintiffs do not support
these claims with caselaw or other evidence. Such a finding would
indicate that the Attorney General plays no essential role in the
process. It might suggest that screening and act of referring an
inmate is the State's initial step toward seeking involuntary
commitment. The Court, however, cannot rely on these bald
allegations in the face of evidence to the contrary.

The Court disagrees with the Plaintiffs' contentions and notes
that while several cases discuss the commitment procedure under the Act, not one tends to show the Attorney General lacks
overriding authority to decide whether to seek civil commitment.
C.f. Kansas v. Hendricks, 521 U.S. 346, 352-53 (1997)
(describing Kansas' involuntary civil commitment process; the New
Jersey Act follows the same process of consideration and
referral); E.g. Triboletti v. Rogers, et al., No. 02-cv-5911
(D.N.J. Sept. 3, 2005); In re Commitment of W.Z., 173 N.J. 109,
120-22 (2002) (also for describing the Act as "virtually
identical" to the Kansas scheme challenged in Kansas v.
Hendricks); State v. Bellamy, 178 N.J. 127, 136 (2003); In re
Commitments of M.G. and D.C., 331 N.J.Super. 365, 373 (2000);
State v. Mumin, 361 N.J.Super. 370, 382 (2003); In re
Commitment of P.Z.H., 377 N.J.Super. 458, 463-65 (2005). Indeed,
the Act itself provides that the Attorney General initiates a
court proceeding for involuntary commitment. N.J.S.A.
30:4-27.28(a). Furthermore, the Plaintiffs' Complaint identifies
the role of the DOC as to refer for screening for civil
commitment; suggesting that the Attorney General does not accept
every referral as tagged for civil commitment. (Complaint at 23,
27, 34); but see Mumin, 361 N.J.Super at 382.

Based on these considerations alone, the Court finds that
providing procedural protections at the referral stage would be
premature and perhaps in vain. The DOC's decision to refer an
inmate to the Attorney General is not a "meaningful time;" the DOC is not the State's final, or even central, decisionmaker on
seeking involuntary commitment and, therefore, the individual's
private interests are not affected at that time. The Attorney
General decides whether or not to file a petition for commitment
and the Attorney General is not mandated to accede to the DOC's
recommendation. In light of this, the Court is not persuaded by
the Plaintiffs' uncorroborated allegations and finds that
Plaintiffs can prove no set of facts that show an interest is at
stake prior to the Attorney General choosing to seek civil
commitment under the Act.

2. Risk Of Erroneous Deprivation

The second factor under Mathews concerns the risk of
erroneous deprivation through the procedures used. The Plaintiffs
argue that there is a risk deprivation under the current
practice. (Complaint at ¶¶ 81-93.) They offer statistics on
recidivism rates to prove Defendants knowingly committed inmates
at a greater rate than the national average. (Id. at ¶¶ 84-88.)
A single set of statistics, however, is not enough to persuade
the Court that there is a high risk of erroneously committing
individuals. Applying a general set of statistics on recidivism
to the presumed rate at which SVPs are civilly committed is not
comparable. A multitude of factors compel each decision to seek
commitment and the rate at which those factors are identified in
particular individuals may increase from time to time. Providing a single study on the
national average rate recidivism "for all types of sex offenders"
(Id. at ¶ 84) and comparing that to the rate of commitment by
the ADTC is not compelling.

The Act provides several layers of protection against an errant
referral to the Attorney General. For instance, the Attorney
General may choose not to seek commitment. N.J.S.A. 30:4-27.28.
On the other hand, if the Court accepts Plaintiffs' contention
that the Attorney General rubber-stamps the DOC's recommendation
for commitment, a court must still find probable cause for a
temporary commitment order and must then set a final hearing to
be conducted within twenty days. Id. At the final hearing the
potential committee is given a full panoply of rights. See
supra at 7-8.

The Plaintiffs also argue that a referral subjects the inmate
who is ultimately not committed to the stigmatization of being
labeled a SVP; however, they provide no support suggesting such
stigma is the result of an absence of protections at the referral
stage. (Complaint at ¶ 89; Plaintiffs' Brief at 21); but see
Smith v. Doe, 538 U.S. 84, 101 (2003) (finding that the
psychological impact of Alaska's Sex Offender Registration Act
"flow not from the Act's registration and dissemination
provisions, but from the fact of conviction, already a matter of
public record."). 3. The Government's Interest

Finally, the Court considers the Government's interest in
maintaining the current system and the burden of providing
additional procedures. The Government's interest is in the
"isolation, protection, and treatment of a person who may,
through no fault of his own, cause harm to others or himself."
Jones v. United States, 463 U.S. 354, 377 (1983) (Brennan, J.,
dissenting). At oral argument, the Defendants explained that
allowing an inmate to appear before the referral committee and
challenge its decision would create a significant administrative
burden and a risk to its partial evaluation. (Transcript at
282-9.) Such a burden would arise from the cost of conducting a
hearing and allowing a potential SVP to challenge every
accusation against him when no official decision to seek
commitment has even been made. Furthermore, allowing a potential
SVP to review and challenge every accusation needlessly risks the
integrity and the safety of the facility and its workers if those
accusations can be challenged at the final hearing.

Allowing a hearing would undermine the Government's strong
interest in safeguarding the public welfare as well as
maintaining an administratively efficient and fair civil
commitment process. The fact that no official decision to seek
commitment is made at the referral stage supports the contention
that providing procedural protections would greatly enhance the administrative burden at a time when an inmate's commitment is
nowhere near being a foregone conclusion.

Conclusion

Balancing these factors, the Court finds the Government's
interests outweigh those of a potential committee at the referral
stage of the involuntary civil commitment process. The Plaintiffs
are not entitled to due process protections at the referral stage
because it is not a "meaningful time" in the procedure. While the
process for involuntarily civilly committing an inmate surely
implicates a liberty interest, it is not until there is a risk of
deprivation of that interest that due process protections are
triggered. There is no risk of deprivation of Plaintiffs' liberty
interest at the referral stage of the process; therefore, the
Court holds that Plaintiffs are unable to allege any set of facts
in support of their claims entitling them to relief.

For the reasons set forth in this Opinion, Defendants' motion
to dismiss Counts Three and Four of Plaintiffs' Third Amended
Complaint is GRANTED. An appropriate Order follows.

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